*1 crime, enhancing beyond the stat- and sentence seriousness of the so I find that (Tr. 704.) at utory aggravating maximum. Id. S.Ct. factor.” State, Smylie 2531. See also The trial court did not err in sentencing (Ind.2005) (Indiana’s sen- Davidson. system allowing judicial fact-find- tencing Conclusion from ing and deviation fixed term violates affirm Davidson’s conviction and Amendment).4 up Sixth Counsel has lifted sentence. logical one of the conundrums created if a
Blakely: judge trial cannot find an DICKSON, SULLIVAN, BOEHM, and aggravator support pre- more than a RUCKER, JJ., concur. sentence, sumptive how can it use such a mitigators, leading factor to offset to a
presumptive sentence? As far as we can
tell, Blakely court’s answer would be:
because the Amendment is not Sixth vio- when, through judicial
lated whatever ac-
tion, presump- the defendant receives the Merry FUNSTON, Howard and
tive sentence. (Plaintiffs Appellants below), legitimacy As for the of the aggra- “[ijmposition vator aof reduced sentence depreciate ... would the seriousness of MUNSTER, SCHOOL TOWN OF crime,” it an aggravating is circum (Defendant below). Appellees stance the trial court consider in sen tencing. 35-38-1- Ind.Code Ann. Sales, f/k/a, Continental Leisure Inc. 7.1(b)(4)(West 2004).5 This circumstance Seavey Corporation, Inc., is properly considered when the trial (Defen- Basketball Club AAU/Munster court considering imposing is a sentence below).1 dants below the presumptive term. Jones v. No. 45S03-0506-CV-262. State, apparent from the record that the trial Supreme Court of Indiana. court in fact did consider a reduced sen 28, 2006. June tenced, statement, by virtue of its “that for the Court to consider reduced sentence depreciate
would the value or depreciate Assembly 4. prior Indiana’s General amended the since he was sentenced we analyze felony sentencing system. his sentence under the replacing former statutes in presumptive "fixed with an "advi- term” Assembly 5. The Indiana General also amend- sory sentence.” 2005 Ind. Acts 1600. This sentencing making ed this statute in all sentence, effectively changed the maximum aggravating mitigating dis- circumstances Blakely purposes, presumptive cretionary, previous system in contrast to the Thus, upper statutory fixed term to the limit. required which the trial court to at least con- example, "Blakely” maximum sen- aggravating explicitly sider some listed cir- changed fifty-fiveyears tence for murder from cumstances. 2006 Ind. Acts 3209. years. sixty-five Sales, 1. Defendants Continental Inc. Leisure certainly passes Davidson’s sentence consti- Basketball Club are not AAU/Munster regime, tutional muster under the new seeking appeal have relief on not filed *2 appellant appellee. ty party brief as Pursuant to of record in the trial court on 17(A),however, Appellate par- appeal. Indiana Rule *3 Allen,
Kenneth J. Michael T. Terwilli- ger, Lazarus, William James Kenneth J. Associates, P.C., IN, Allen & Valparaiso, Attorneys for Appellant. Sears, Maryann
Michael D. Kusiak McCauley, Greceo, Singleton, Crist, Jill M. Sears, Austgen LLP, Munster, IN, & At- torneys Appellee.
On Petition To Transfer from the Indiana of Appeals,
Court No. 45A03-0402- CV-63 DICKSON, Justice. Contributory negligence is generally question of fact requiring by jury trial court, summary judgment may be proper where the facts and resulting inferences establish that the de- fendant is entitled to as a matter of law. This is such a case. affirm trial summary judgment. court’s injured
Howard Funston was
when he
fell
from set of bleachers while
participate
his son
in an Amateur Athletic
(AAU)
Union
basketball
the Mun-
High
ster
gymnasium.
School
Mr. Fun-
wife,
ston
plaintiffs-appellants,
and his
against
thereafter commenced this action
(“the school”),
against the
plaintiffs’
The
claims
Town of Munster
the School
school,
entity,
unlike
governmental
are
Sales, Inc.
Seav-
Leisure
Continental
Wa
Indiana actions for
where
most
Club,
Basketball
ey Corp., AAU/Munster
contributory fault
does
bar
since been
and another defendant
has
fifty
recovery
percent
unless it exceeds
dismissed.
contributing
fault
proximately
the total
AAU,
agreement
Under
damages
operates
and otherwise
identi-
High
provided
School
six
Munster
plaintiffs damages
propor
to reduce
aluminum bleacher
portable
cal five-row
34-51-2-5,
-6. But
tion to fault.
Ind.
Each
of bleachers had no back
sets.
set
Comparative Fault Act ex
the Indiana
*4
seating,
of
and
support
top
for the
row
governmen
pressly
application
excludes
pushed against
of the sets were
none
entities,
34-51-2-2,
and
tal
Ind.Code
games, Mr. Funston sat on
wall. For two
defense of contribu
thus the common law
separate
of
of the six
the lower seats
two
applicable
gov
for
tory negligence remains
bleachers,
leaning
identical sets of
defendants,
ernmental
such as the school
of the
higher
back on the
rows
bleachers
Therefore,
slight
in
case.
even a
de
game of the
support. During
the third
on the
of Mr.
gree
negligence
part
of
of a third set of
day,
top
he sat on the
row
Funston,
proximately contributing
to his
get
In an effort to
identical bleachers.
damages,
operate
claimed
will
as a total
comfortable,
legs
Mr. Funston crossed his
damages
bar to the Funstons’ action for
back, falling
school,2
and leaned
backwards off the
against
though,
the
even
sustaining injuries.
bleachers and
non-governmental
other
defen
against the
dants, any
only
fault of Mr. Funston would
summary
The school filed a motion for
operate
damages
might
to reduce the
he
judgment, asserting that
Funston was
Mr.
obtain.
contributorily
a matter of
negligent as
In
of
appeal
their
sum-
agreed
granted
The trial court
and
the
mary judgment,
argue
the Funstons
that
Appeals
school’s motion. The Court of
(1)
that
the school failed
establish:
Town Mun
reversed. Funston
Sch.
of
contributorily
as a
ster,
(Ind.Ct.App.2004).
material and low the standard to which he should con entitled to a as matter of law.” safety. form own protection for his 56(C); Trial Rule see also Rhodes v. ordinary Lack of reasonable care that an 382, (Ind.2004); Wright, 805 N.E.2d 385 in like or person would exercise similar Peru, City Butler v. 733 N.E.2d upon circumstances is the factor which the of (Ind.2000). All facts and reasonable infer presence de absence Gleim, ences are construed in favor of the non- pends.” Jones Comm’rs, (Ind.1984); moving party. Catt v. Bd. see also Hundt v. La (Ind.2002). Co., Crosse Grain proximately to the claimed 2. Under the common law defense of contribu- contributes Bain, Mattmiller, tory negligence, plaintiff may injury. not recover if Adm’x v. 549, 556, (1938). guilty any negligence, slight, no matter how Expressed way, another spectators row, sitting on the top but Mr. “[cjontributory negligence is the failure of Funston leaned back anyway. He ex- person safety to exercise for his own plained deposition: degree of care and caution which ordi- Logically, I would think there would be reasonable, nary, prudent person in a a back there. I had sat on the other similar situation would exercise.” Brown bleachers and I didn’t sit at top v. N. Ind. Publ. Serv. I had leaned back in several of those 798 (Ind.Ct.App.1986). bleachers on the next step.... thought I there, there was something back ... I’m
Contributory negligence general is not sure what I thought was back there ly question of fact and is not an appropri time. summary judgment ate matter “if there conflicting are factual inferences.” Appellant’s App’x. 256.
Butler,
“However,
The
facts are that Mr.
(1942) (no liability may
Funston fell when
result when a
he leaned backwards
plaintiff
superior
equal knowledge
while
has
or
sitting
top
on the
of a
row
set of
Farms,
danger);
of the
bleachers. He had
Meadowlark
Inc.
gym
been at the
Warken,
hours,
437, 448,
Ind.App.
about four
176
two basketball
(1978) (“[A]
games
morning
sitting
plaintiff
while
on
lower
rows
contributorily negligent
on other sets of identical
bleachers.
as matter of law
game,
For the third
top
knowledge
appreciation
he moved to the
of the
row of one of the
clearly
dangers
surpassed
bleachers.
It was
...
equaled
or
that of
defendant.”);
visible that
railing
there was no back
Stallings,
Ind.App.
(parties’
consequence
at 87-88
iden-
of
the act or omission.
Wright,
Rhodes v.
dangers compels
knowledge
tical
of the
(Ind.2004);
Kroger
Vernon
contributory negligence as matter
finding
(Ind.1999);
Havert v.
law).
of
Caldwell,
Thus,
undisputed
if it were
argue
The
Funstons
there exists
knowledge
danger
of the
was
Funston’s
of fact
genuine
regarding
issue
whether
school,
that of the
equal
superior
or
proximate
the sole
cause of Mr. Funston’s
finding
compel
circumstance could
injuries was the school’s failure to follow
contributory negligence as a matter of law.
protect against
code and
falls from the
hand,
the other
even if we assume for
On
top
They essentially
of its bleachers.
as-
purposes
argument
plaintiffs’
asser-
interpreted
sert
the facts
tion that there is a
issue of fact
show that the school’s
not Mr.
regarding whether Mr. Funston’s knowl-
Funston’s,
only proximate
was the
cause.
danger
edge
appreciation
was
disagree.
school’s,
equal
superior
to that of the
multiple proximate
There can be
this does not
a determination that
preclude
a resulting
causes of
event. The defense
contributorily negligent
Mr. Funston was
proximate
requires only
cause
that a
not, however,
aas matter of law. We do
plaintiffs negligence
proximate
be “a”
equal-or-superior-
on the
resolve this case
cause,
is,
one of the
causes.
knowledge issue.
It is an
fact that Mr. Funston
plaintiffs primarily argue
The
that a rea-
leaned
ascertaining
backwards before
spectator
sonable
could be distracted
on,
something
whether there was
to lean
*6
inadvertently just
and lean back
easily
fact
visible and one that he had
They urge
as Mr. Funston did.
that the
ample opportunity to observe. We find
context of the
makes Mr.
event
Funston’s
falling
suffering inju
that
backwards and
certainly
conduct reasonable.
is under-
reasonably
ries
should have been foreseen
that
standable
Mr. Funston would be dis-
a natural
probable consequence
as
engaged
tracted as he
his attention on his
omissions,
such acts and
and thus conclude
game.
being
But
son’s basketball
under-
negligence proximately
that Mr. Funston’s
equate
being
standable does not
com-
injuries
to
contributed
as a matter of
pletely
negligence.
of all
free
We find
Upon
these facts there is no
only
that
undisputed
facts
a sin-
issue.
reasonably
gle inference can
be drawn:
Finding
evidence
negligent
Mr. Funston was
to some de-
a matter
establishes as
of law that Mr.
gree,
enough
and this is
establish
negligent
negli-
and that such
contributory negli-
common law defense of
gence
proximate
was a
cause of the
gence as a matter of law.
injuries,
claimed
we conclude that the trial
apply
court was correct to
the defense of
negli
Even Mr. Funston was
contributory negligence
and to
gent,
plaintiffs alternatively argue
summary judgment.
school’s motion for
the school failed to establish as a matter of
Judgment affirmed.
any
negligence
proxi
law that
such
was a
resulting injuries.
mate cause of the
An
SHEPARD, C.J., and SULLIVAN and
act or omission is
said
BOEHM, JJ., concur.
injury
resulting injury
cause of an
if the
foreseen,
J.,
RUCKER,
was
should have
separate
dissents with
foreseen,
probable
opinion.
been
the natural and
Justice,
RUCKER,
dissenting.
factually
vealed no
similar
from
cases
Court,
historically
we have
limited com-
I
respectfully
agree
I
dissent.
with the
mon
contributory negligence
law
in-
“[ujnder
majority that
the common law
plaintiff very
stances where a
clearly ne-
plain-
defense of
glected to exercise “reasonable care that
guilty
any negli-
tiff
not recover if
ordinary person
would exercise in like
gence,
slight,
proxi-
no matter how
Jones,
or similar circumstances.”
injury.”
mately contributes to the claimed
See,
N.E.2d at 207.
e.g.,
(plaintiff,
id.
who
Bain,
n. 2
Op.
(citing
at 598
Admx.
deaf in
wearing
was
one ear and
dark
Mattmiller,
213 Ind.
clothing
glasses,
wet
crossed a road
(1938)).
“[cjontribu-
agree
I also
on a rainy, foggy night
mid-block
without
tory
question
negligence
generally
traffic);
oncoming
Hundt v.
appropriate
fact and is not an
matter for
Co., Inc.,
La Crosse Grain
I cannot as matter law
facts as we know them lead but one Although my
inference. re- research has